—Vicente F. Benítez R., JSD candidate at NYU School of Law and Constitutional
Law Professor at Universidad de La Sabana*

Introduction

Several analysts have warned about the sudden concentration of power in the hands of chief executives in the wake of the COVID-19 situation. From the Americas to Africa, and from Europe to Asia, we have witnessed a common pattern by which the executive branch has claimed extraordinary powers to tackle the challenges posed by the pandemic.[1] This expansion of the executive’s prerogatives might be necessary in some places to cope with these exceptional circumstances. But it also comes with a price. Presidents and prime ministers not only can use but also abuse of the enhanced powers granted by the exception.[2] As a result, some of these commentators have asked courts to actively intervene and keep a vigilant eye on the measures enacted by more-powerful-than-usual executive officials. Since strong executive offices could take advantage of this juncture to erode constitutional democracy, the argument goes, courts should be up to challenge and adopt a less deferential stance than the one they normally embrace in ordinary times. As an esteemed colleague from Colombia argued, ‘the more power the President has, the more judicial oversight courts should employ’.[3]

Although I share the normative thrust behind this stance, in this entry I want to voice a realistic note of judicial caution and prudence. Courts are akin to vessels. Their objective is to safely arrive to their normative destination. Having a captain who knows the route, like Hercules, is very important to attain that end. But this is not sufficient. Courts navigate dangerous political waters in normal times. In emergencies, the navigational conditions are even more extreme—they may open the door more easily to would-be autocrats attacking the court, and an overly vigorous review of emergency measures could be the perfect pretext to dominate them. Thus, captains should also adopt a realistic attitude and be sensitive to this reality to avoid a wreck.[4] This is an invitation, then, to expand our toolkit to analyze courts operating under adverse political settings and to include other considerations in addition to purely normative reasons (which are very important ones).[5]

1.- The
Inherent Fragility of Courts in Normal Times: Sailing the Waters of Politics

Courts are, in and of themselves, weak institutions, at least when compared to their counterparts in government. This assertion is not revolutionary. At the outset of the U.S. republic, Hamilton famously explained that courts are the least dangerous branch of government as possess neither the sword, nor the purse. Different from the executive and the legislative branches, judges do not have armies at their disposal, nor budgetary considerations to wield in their favor.[6] If this is the case, why would significantly more powerful institutions be willing to obey the mandates of a fragile body, especially when these mandates clash with their preferences? A potential answer is that judicial independence is an interactive phenomenon. Independence, oftentimes, depends on actors or forces external to the mere legal decision-making of the court.[7] More specifically, rulers might not want to interfere with the courts’ independence and might want to comply with adverse rulings when it is in their interest to do so or when they cannot do anything to defy the court. How so? Incumbent rulers might respect judicial independence or an unpleasant decision if (a) it’s very costly for them to sway the court; and (b) deferring to an unpleasant decision or an annoying independent court brings about some benefits for the government.

Let us address, first, hypothesis (a). In scenarios of political fragmentation, nonconvergent rulers will have a hard time passing legal or constitutional measures undermining the court’s independence. Sometimes the enactment of these measures requires a great deal of coordination among different actors, coordination that might not be available in a politically divided environment.[8] Societal fragmentation can also shield popular courts by triggering an electoral backlash against governmental officials who dare to attack them. The looming threat of such a popular reaction might deter incumbents from invading the court’s independence.[9]

As for the second hypothesis, we could think of insurance-like mechanisms. When the president or prime minister fears she might lose the next election and be out of office relatively soon, it might make sense to have an independent court in place. The soon-to-leave ruler might find it appealing to have a relatively autonomous court because it might later protect her interests after the new incoming government takes office.[10]

Although there are other drivers that might working to
produce independent courts, fragmentation, popular support and insurance-type
conditions have proven to be effective in bolstering judicial independence in several
countries. The lesson here is that in ordinary periods of time, courts are
fragile institutions and their independence is sometimes contingent on third
players who assist the court when confronting mightier actors.

2.- Enhanced
Judicial Fragility: A Perfect Storm in Times of Pandemic

Periods of constitutional exception could be the
perfect storm. In exceptional circumstances, the presence of the previous factors
that produce calmer waters is less likely. Therefore, courts are more fragile
than usual and at a greater risk if we ask them too much. If courts keep their
normative speed and route to get to their destination –as though nothing was
happening– they could very well sink.

First, the conditions that spur a political fragmentation
are not readily at hand in emergencies such as the one prompted by COVID-19. Executive
officials usually control legislative and executive powers (even more, they may
also suspend legislatures). Also, independent institutions and political
minorities might be on board with the government on its project to reduce
contagion. Hence, the number of veto players drastically drop and the lack of
coordination that might prevent rulers from coopting courts now can be overcome.
Just to give an example, in Colombia the filing of citizens’ petitions
challenging the constitutionality of administrative COVID-related presidential
decrees before the Council of State was temporarily halted for one month. This
decision was met with scant criticism as it was regarded as a suitable measure
to reduce the spread of the virus among judges, practitioners and clients. Not
even the judiciary or the Council of State decried it. On the contrary, the Judicial
Council (an independent body) took the decision in line with the government’s plans to shut the
country down.

When it comes to popular support, the situation is not any better. In circumstances of emergency, it can be expected that the citizenry turns its gaze towards the head of the executive who, in its view, may be the only one capable of managing the crisis.[11] A court might be a respected institution, but the people might also be rallying behind the governmental anti-pandemic agenda. The popular mechanism that makes rulers think twice before interfering with courts may now be deactivated. Two cases come to mind. In Colombia, President Duque, since his inauguration, has regularly kept low levels of favorability. Nevertheless, the crisis has allowed him to improve his image to unprecedented levels not seen during his tenure. Although he has not explicitly clashed with the judiciary, the existence of a popular backlash, should he wish to do so, is now much less certain that it was several months again. Second, President Bukele of El Salvador defied a ruling from the Supreme Court that held that the imprisonment of people violating the quarantine was unconstitutional. The President claimed that the lives of Salvadorians must prevail over the opinions of unelected judges. Bukele’s popularity continues to be very high despite this blatant disregard for the Court.

Finally, the protection of independence afforded by
insurance could also falter. The recent examples of Wisconsin and Chile suggest
that the pandemic seems to be a sound argument to postpone elections due to health
or plebiscite-turnout concerns, respectively. However, the pandemic might also be
the perfect excuse for would-be autocrats to cling to power by postponing electoral
contests until further notice. Multiple countries in Africa, for instance, are mulling the possibility of rescheduling elections based on dubious arguments. With
electoral uncertainty out of the equation, autocrats might not have any
incentive to bolster judicial independence.

The gist of the argument is that courts in emergencies
appear to be in a more unstable position than in periods of normalcy. An audacious
judgement against the ruler could be a golden opportunity to rein in a ‘rebellious’
court.

3.- A
Word of Optimism

From a normative vantage point, it is sensible to ask courts to step in more actively and serve justice regardless of the consequences, as Hercules would have done. From a realistic view, these are institutionally hard cases, that is, cases where doing justice even if the world (or the court for that matter) perishes, might not be a reasonable solution in all cases.[12] In a recent paper Yaniv Roznai observed that the adoption of an aggressive standard of judicial review is not a good idea as ruling bullies could get enraged and use the sword and the purse decisively against courts.[13] I would add that, in light of these difficult times, even a regular standard of review might, depending of the specifics of the case, pave the way for courts’ subjugation.

The point I seek to make is that courts should combine normative and political wisdom when making their decisions. Experience has shown that some wise courts and wise judges have been able to discharge their duty and have upheld the constitution in unfavorable conditions by means of strategic and prudent moves. For instance, the cornerstone of the constitutional revolution in Israel was Justice Barak’s practical wisdom to please the government in the instant case while, á la Marbury v. Madison, introducing the notion of judicial review.[14]

We, scholars, should also take into consideration this combined approach. Being faithful to our normative commitments is something valuable and we should require courts to be ready to fulfill their mission, bearing in mind the politics they are embedded in. Maybe we should adjust our lens of analysis before asking courts to do more than what they can realistically do.[15] Academia can play a key role by thinking and coming up with alternatives that allow courts to dock at the safe harbor of constitutional values without committing suicide amid the turbulent waters of emergencies.[16]

[7] See Shannon Roesler, ‘Review: Permutations of Judicial Power: The New Constitutionalism and the Expansion of Judicial Authority’, 32 Law & Social Inquiry, (2007).

[8] Cf. See John Ferejohn, et al., ‘Comparative Judicial Politics’, in: The Oxford Handbook of Comparative Politics. (Carles Boix and Susan Stokes eds.) OUP, 2009. These interventions on courts can also take an informal shape, but, even in these scenarios, some degree of coordination is also required.

[11] Thomas Poole recently wrote an interesting reflection about the frontispiece of Hobbes’ Leviathan first edition, noting how, in contexts of pandemics, the people may center their attention on the government. See Thomas Poole, Leviathan in Lockdown, London Review of Books, May 1, 2020. In Norway, for example, the government has increased its favorability. Cf. Hans Petter Graver, Fighting the Virus and the Rule of Law – A Country Report on Norway, VerfBlog, April 13, 2020.

[14] On this strategy, see Rosalind Dixon and Samuel Issacharoff, ‘Living to fight another day: Judicial Deferral in defense of the Democracy’, Wisconsin Law Review (2016). A mixed assessment can be seen in Kim Lane Scheppele, ‘The New Judicial Deference’, 92 Boston University Law Review (2012).

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